Treason Act 1661

The Treason Act 1661 (13 Car. 2 c. 1) was an Act of the Parliament of England, although it was extended to Scotland in 1708. [7 Ann. c. 21] Passed shortly after the Restoration of Charles II, it is no longer in force, but some of its provisions continue to survive today in the Treason Act 1695 and the Treason Felony Act 1848. One clause which was included in the Treason Act 1695 was later adapted for the United States Constitution.

Two witnesses rule

The most important feature of the Act was that it introduced a significant new rule of evidence in treason trials, namely that nobody could be convicted of treason except by the evidence of "two lawful and credible witnesses upon oath... brought in person before him or them face to face," or if he confessed "willingly without violence." This clause of the Act was replaced by the Treason Act 1695, which added that the two witnesses had to have witnessed the same offence (although not necessarily the same "overt act" of the offence). [Sections 2 and 4.] The rule was inherited by the United States and was incorporated into the US Constitution in 1787, which added that both witnesses had to have witnessed the same overt act. [] The rule was abolished in the United Kingdom in 1945. [Treason Act 1945, c. 44]

The 1661 version of this rule only applied to the new forms of treason (and other offences) which were created by the 1661 Act (see "New offences" section below). The 1695 Act applied to all forms of treason, except counterfeiting.

This clause of the 1661 Act, section 5, was cited by US Supreme Court justice Antonin Scalia in his judgement in "Crawford v. Washington". [Crawford v. Washington, 541 U.S. 36 (2004), [http://a257.g.akamaitech.net/7/257/2422/08mar20041045/www.supremecourtus.gov/opinions/03pdf/02-9410.pdf .pdf file, page 10] ]

New offences

Treason

The Act created four new kinds of high treason, in addition to those already existing. The Act made it treason to:

"within the realm, or without, compass, imagine, invent, devise or intend death or destruction or any bodily harm tending to death or destruction, maim or wounding, imprisonment or restraint of the person of ... the King,"

or:

"within the realm or without, compass, imagine, invent, devise or intend" :
* to deprive the King of his crown,
* to levy war against the King, "within this realm, or without," or
* to "move or stir" any foreigner to invade England or any other country belonging to the King.

These provisions were expressed only to have effect during the lifetime of the King, Charles II. However they were temporarily re-enacted, with two modifications, by the Treason Act 1795, [36 Geo. 3 c. 7] and then made permanent in 1817. In the 1795 version, "the realm" meant Great Britain (in 1848 the Act was extended to cover Ireland), and levying war against the King was only an offence under the Act if done in order to compel the King to change his policies or to "intimidate or overawe" Parliament. (However under the Treason Act 1351, which was not affected, levying war against the King was still treason, without these additional criteria.)

The penalty for treason was death. However the last three treasons on the above list were reduced to felonies by the Treason Felony Act 1848, which made the maximum sentence life imprisonment. The 1848 Act is still in force ("see article for a fuller quote from the text"). Imprisoning or otherwise harming the Sovereign continued to be high treason, punishable by death, until the 1795 Act was repealed by the Crime and Disorder Act 1998. However assaulting the Sovereign is still an offence under the Treason Act 1842, which carries a maximum sentence of seven years.

In some Commonwealth of Nations countries, such as Canada, [ [http://laws.justice.gc.ca/en/ShowDoc/cs/C-46///en?page=1 Canadian Criminal Code, section 46] ] Australia [ [http://scaleplus.law.gov.au/html/pasteact/1/686/0/PA001590.htm Australian Crminal Code] ] and New Zealand [ [http://www.legislation.govt.nz/browse_vw.asp?content-set=pal_statutes Crimes Act 1961, section 73] ] it is still treason to imprison or harm the Queen.

Other offences

Besides treason, the 1661 Act created other offences designed to protect the national security. These offences required the evidence of two witnesses or a confession, and had to be prosecuted within six months of the offence being committed. The king had to personally authorise a prosecution.

Anyone who in speech or writing called the King a heretic or papist, or who incited "hatred or dislike of the Person of His Majestie or the established Government" was to be disqualified from holding any public, military or eccesiastical office (but could keep his peerage). This measure was expressed only to last during the King's lifetime.

A permanent offence (until it was repealed) was committed by any person who claimed (in writing or in speech) that the Long Parliament had not been dissolved, or that anyone had a duty to obey an oath to change the government, or that Parliament could legislate without the king's assent.

Other provisions

The Act declared that the Solemn League and Covenant was null and void. It also preserved Parliament's privilege of free speech, and the right of a peer to be tried in the House of Lords.

A peer who was convicted of any offence under the Act was to be disqualified from sitting in the House of Lords, unless pardoned (although he would keep his title).

ee also

*High treason in the United Kingdom

References

External links

* [http://www.british-history.ac.uk/report.asp?compid=47285 Original text of the Treason Act 1661] , in "Statutes of the Realm", vol 5, at British History Online
* [http://www.statutelaw.gov.uk/content.aspx?activeTextDocId=1517296&parentActiveTextDocId=0&showAllAttributes=1&hideCommentary=0&suppressWarning=0&versionNumber=1 Text of the Treason Act 1795] (at the time of its repeal in 1998), from the UK Statute Law Database